The intersection of criminal law and immigration law

The rest of the National Guard memo

This morning’s news cycle was flooded by reports of a Trump Administration draft memorandum authorizing deployment of up to 100,000 National Guard troops for immigration policing activity. Even as a draft, it’s frightening that the federal government is articulating the kind of extremism not witnessed in the United States since Operation Wetback in the 1950s. Though long decried for its sheer cruelty, as a candidate Donald Trump praised it, claiming it was effective and popular. Fortunately, I am convinced that we are still a few steps away from launching a massive military campaign targeting migrants in the United States.

There is much in the National Guard memo, however, that is imminently possible. The memo draft is simply a plan by which DHS would implement President Trump’s border policing executive order issued January 25. Putting aside the National Guard, most of the memo’s other provisions can be categorized into two themes: more detention and less relief from removal.

More detention

Reiterating the president’s border policing executive order, the memo calls for hiring an additional 5,000 Border Patrol agents. § B. Like the executive order, the memo also doesn’t address funding for these additional positions. It is unlikely that DHS could find sufficient unrestricted funds in its budget to cover the cost of 5,000 additional agents. It’s worth noting that the Border Patrol currently has about 60,000 employees, including approximately 20,000 agents. More agents would obviously mean greater ability to identify potentially removable individuals.

The draft clearly evidences an intent to keep those people locked up while the federal government decides whether they will be allowed to remain in the United States. § A. Any migrant who has not been admitted into the United States is to be detained. Anyone who requests asylum and passes a credible fear interview is to be detained. CBP or ICE may release somone who fits this or any other description in INA § 235 if the person wins in immigration court, is being released outside the United States, or with the approval of high-ranking DHS officials (either the CBP Deputy Commissioner or ICE Deputy Director, respectively).

Less relief

To make sure that fewer people ultimately obtain the federal government’s permission to remain in the United States, the draft also imposes obstacles to navigating with the legal process. First, it would dramatically expand expedited removal. Currently, under INA § 235(b)(1)(A)(iii)(I), low-level DHS officials can remove certain migrants without involving the immigration courts or providing access to counsel. Migrants can be placed into expedited removal if they arrive at a port-of-entry without adequate immigration documents. Migrants who enter the United States clandestinely can be placed in expedited removal if apprehended within fourteen days of arrival within 100 miles of the border. The draft would expand expedited removal to apply to migrants “apprehended anywhere in the United States” who are unable to convince an immigration officer that they have been in the country for at least ninety days. § G.

Second, the draft would make it more difficult for people to wage legal fights in immigration court. A little-known provision of current immigration law, INA § 235(b)(2)(C), allows but does not require DHS to force some people being considered for exclusion to wait outside of the United States while the government decides if they will be allowed to come here. In the past, this has at times been used to keep lawful permanent residents applying for admission in México or Canada. Section H requires a substantial expansion of how that provision has been interpreted in the past. According to § H, CBP and ICE personnel would be able (or perhaps be required to) keep asylum seekers who come to the United States by land in México or Canada while asylum proceedings are ongoing. They would essentially be told to come back for a hearing at a later date.

To be sure, none of these changes have been implemented. As of this writing, they are merely drafts. But unlike the massive National Guard deployment threat that received so much attention this morning, these provisions are actually implementable and unlikely to receive nearly as much critical coverage as the shocking references to domestic military movements.

Comments

By pointing to Operation Wetback rather than the contemporary border, you’re understating already practiced uses of military technology and tactics in immigration controls. Scholars as diverse as Dunn and later me have analyzed the exercise of military strategy and tactics in border and I’ve maintained that they long been part of immigration policing. Trump’s policies or EO’s aren’t that new. They represent wn intensification

February 5: Quoted in article about Indiana death in drunk driving incident allegedly caused by unauthorized migrant [Read article here]

January 31: I'm quoted in San Francisco Chronicle about ICE's policy of arresting people in and near courthouses [Read article here]

January 18: I talked to CityLab about symbolic value of ICE raids on 7-11 stores [Read article here]

January 8: I'm quoted in Governing talking about ICE head's threats to imprison elected officials who support policies limiting cooperation with ICE [Read article here]

January 5: I'm quoted in article about San Antonio Police Department decision to prosecute alleged migrant smuggler under state law rather than hand over to ICE for federal prosecution [Read article here]

January 3: Quoted in article about ICE chief's threats to imprison elected officials who support migrant-friendly policies [Read article here]

2018

December 30: I'm quoted in The Atlantic discussing the special impact crimmigration policies have on black migrants [Read article here]

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